*1 330 assigned preparation to him for no case has been
that etc.; opinion ninety days, have that we for more than 2 that state respondent down said sec. and not struck guide to his aid of this court as a controller needs the of the act. 2 and other sections official duties under sec. opinion sec. of the clear from our We think it 8430, N.C.L.1929, subject act, being same sec. N.C.L.1929) (sec. 8433, and we sec. 5 infirmities as controller are hold. duties of the state so No official sections,- remaining fur- by any six affected unwar- would be ther consideration of such sections- proceeding. ranted in this Rehearing denied. of JACOB KATLE the Matter the Estate KATLEMAN,
MAN, Also Known
JAKE
KATLEMAN,
LIBERTY
Deceased;
LYNN
Estate,
JENNIFER
Heirs
KATLEMAN, Minor Heir of the Above-Entitled
Through
RUY-
WILLIAM G.
Estate,
Attorney Appointed
MANN,
Her
Above-
R.
Court, Appellants,
BELDON
Entitled
v.
Purported
KATLEMAN,
Purchaser
Personal
and FIRST NATIONAL BANK OF
Property,
Respondents.
NEVADA,
Coadministrator,
Nos. 3731 and 3732
April 15, 1954.
Taylor Gubler, Vegas, & of Las for Appellant, Katleman. Ruymann, Vegas, Appellant,
William G. of Las for the Lynn Jennifer Katleman. Ham, Jr., Vegas;
A. W. Ham & A. W. of Las Wood- burn, Woodburn, Reno; Gold, & Forman Leo K. Hills, California, Beverly Attorneys Respondent, Beldon R. Katleman.
Jones, Jones, & Wiener of Las and Abe Rich- man, Angeles, California, Esq., Attоrneys Los Respondent, First National Bank of Nevada.
OPINION
By Court, Eather, J.:C. by Liberty Katleman, one of
This is an appeal Katleman, decedent, Lynn heirs of the Jennifer heir, through Ruymann, G. her a minor William attorney appointed by from an order confirm- ing July 22, personal property made and entered sale 1952; confirming from an order amended per- 10, 1952, sonal made and entered September and from the order of made and entered the court 23, 1952, denying October motion to vacate appellants’ confirming sale, aside and set said amended ordеr day from certain made and entered the 23d order on October, 1952, denying appellants’ motion for a new trial. understanding necessary points
The an facts appeal are as follows: presented deceased, Katleman, Jacob known as Jake also Katleman, intestate, June, 1950, day died 22d and at the time of his death of Las resident *4 County Clark, Nevada. of State of 1950, day July,
Thereafter on the 6th of the First Liberty Katleman, Bank National of Nevada and widow deceased, appointed were coadministrators of his estate, day July, 1950, qualified and on the 6th of as such, acting and are still coadministrators. On such May 28, 1952, Nevada, the First National Bank one of coadministrators, filed a notice of to sell intention
personal at property sale. The public said personal property described in said notice consisted of shares Elranco, Inc., of in stock a Nevada and a Corporation, promissory against note in favor of the decedent Elranco, Inc., $81,631.12. in the amount of personal
At the time the notice of intention to sell property at sale was filed with the district court signed by Brown, same was C. D. then assistant Bank trust officer of the First National of Nevada. The coadministrator, Katleman, was, at the time of filing notice, said absent from the State. The said day May, 1952, notice was posted on the 28th of in three public places, being courthouse, as follows: One at the station, city hall, at the police and one at the all in City Vegas, County Clark, of Las State of Nevada. Vegas Said notice also published the Las Review- Journal, daily newspaper general circulation, published printed County, Las Clark Nevada, times, May 28, three to wit: June and June 8, 1952. sale,
Pursuant to said notice of a sale was held at the south fifth street branch of the First National Bank of Nevada, Vegas, Nevada, day June, Las on the 9th 1952, at the day. hour of 11 o’clock a. m. of said There present following per- time of said Liberty Katleman, : sons one of the coadministrators of Katleman, the estate of appellants Jacob and one of the here, Clemens, Martin A. Hаm, Jr., M. L. A. W. Josephs, and Beldon R. Katleman.
A personal bid for said made the said Katleman, being Beldon R. $184,500. in the amount being bids, There no further the stock was sold to $102,868:88, Beldon R. Katleman for the sum of and the promissory note also sold to Beldon R. Katleman $81,631.12. for the sum of Thereafter, day June, on the 12th Nevada, First National Bank of one of the coadminis- trators, petition filed a for confirmation of the sale. Said Brown, was executed C. D. as assistant trust
335 Nevada, Las National Bank of the First officer of for confirmation said petition At the time Nevada. Katleman, Liberty was absent
filed, coadministrator the petition, at the The said of Nevada. from the State court, was filing the clerk of the the with of same time June, 1952. hearing day 24th of on the noticed for June, day Thereafter, of 20th and on the objections Katleman, appellants, Liberty filed of the being to the time prior the confirmation said 21, 1952, petition. hearing On June for the of said set acting attorney Ruymann, for Jennifer William G. objections Katleman, heir, also filed Lynn a minor said sale. the cоnfirmation of on were based objections Katleman
The ground petition confirmation sale was the that by Liberty Katleman. approved nor consented to not Ruymann, on objections G. of the said William Katleman, Lynn based on of Jennifer behalf amount ground of the was worth in excess that the stock which the same the amount for on the same and bid sold, security to secure offered and that inade- purchase was of the proposed balance unpaid ground was no there quate, that and on the further property, necessity personal to sell said estate including the note. the stock and hearing 24, 1952, had on the petition
On June department No. 2 of said district for confirmation coadministrator, Liberty Katle- court. At that time requested man, appeared the hear- personally postponed. The ing for confirmation be on the hearing time, postpone at that said court refused present. testimony At con- of the witnesses took taking testimony of the witnesses of the clusion court, howéver, a continuance. present, consented to peti- on the commencement Before the confirmation, request of counsel for the at the tion for Nevada, Bank of First National coadministrator Henderson, asked judge, Honorable A. presiding S. anyone of his voice within the there were if place shares stock would like to a bid who Inc., amount Elranco, note in the promissory *6 against $81,631.12, deceased in favor of the of Elranco, Inc. confirmation, Mr. C. D. of the support coadministrator,
Brown, officer of the assistant trust Nevada, called to the stand. First Bank of was National of imme- was in need Mr. Brown stated that the estate of and amount approximate diate cash testified $160,949.94. debts of the estate was sum of Moe, Mr. Kermit certified accountant Las a Nevada, stand, next called to the and stated was Elranco, that the book value of the shares of stock of Inc., $71,961.67. price The actual bid for said stock was Katleman, $102,868.88. purchaser, Beldon R. was purchase price, $81,631.12, repre- of the balance question. sented the note Upon testimony Mr. the conclusion of the Brown Moe, hearing 10, July and Mr. continued until 1952, request coadministrator, Liberty of the July 10, 1952, Liberty On Katleman. Katleman filed a “Suggested document entitled Administration of the by Liberty Katleman, above entitled Co-adminis- estate suggested Liberty trator.” The essence of Katleman’s $50,000 was for her to borrow the sum of and to plan, estate, use said sum to certain liabilities of the pay $49,401.31. which she claimed amounted to total of a During hearing developed it the coursе of that the Elranco, Inc., corporation, leased the hotel premises it premises. and that it did not own said occupied, July 10, At the of the said on completion 1952, again July 14, it was recessed and continued to had, at which time further and at confirming which time the court made an order the sale personal property by of said the estate to Beldon R. Thereafter, day September, Katleman. on the 10th court an the district filed amended order confirm- ing personal property. The sale of cоurt found that the estate was the total indebted at time of said $160,949.94. sum of September 26, 1952, Liberty Katleman, heir,
On as an Ruymann, attorney Lynn and William G. for Jennifer Katleman, heir, a minor filed a notice intention to trial, move for a new set aside the order confirm- ing confirming sale and the amended order following grounds:
(1) Irregularity in the proceedings the court and Nevada, coadministrator, First National Bank of irregularity in the order and amended order abuse of discretion which Katle- man, coadministrator, Lynn Katleman, and Jennifer heir, having minor prevented from a fair trial.
(2) surprise, ordinary Accident or which prudence *7 guarded against. could have not
(3) Newly discovered party evidence material for the making motion, the which she could not with reasonable diligence produced have discovered and at the trial.
(4) justify Insufficient evidence to the the decision of court, against and that the decision of the court was law.
(5) occurring trial, Errors at the and excepted to Lynn Katleman, and Katleman Jennifer minor heir. support the notice of intention to move for a new
trial, Liberty affidavit, Katleman submitted her оwn the Josephs, affidavit of M. L. and affidavit the of Martin hearing L. Clemens. Thereafter a was held on these motions, and evidence taken on the issues raised. hearing the trial,
At time of on the motion for new appellant time, following raised for the first points, previously none of which had been at issue on sale, for confirmation of that:
(1) Notice note, of intention sell the to stock and and thereof, posting allegedly defective. (2) allegedly The purported sale was not a sale public highest bidder, was, thеrefore, to invalid.
The lower at the conclusion of the on trial, and the motions, for new the motion these denied confirming The sale. order to set aside the motion appealed the order to court from have this appellants confirming the order sale and from order and amended They have denying appealed new trial. also motion for refusing order and to set aside said the order from confirmation. order of amended appellants appeal in their relied upon Errors are as follows: confirming
(1) the purported The court erred for order of invalid for want of sale. petition which was sell, (2) to and the posting The notice of intention thereof, fatally defective. were both
(3) purported not a sale to the The sale bidder, consequently invalid; highest confirming (4) The court abused its discretion purported sale. will discussed in order as
The errors be listed. Appellants order contend that the of confirmation of invalid because the coadministrator herein sale was authоrity preliminary file a to sell failed to personal property and failed have an to order directing the personal entered sale of be made. present petition for not contemplate
The statutes do procedure property. now order of of personal statutes is for an administrator outlined and when bids notice the intention sell the property, *8 high- made, and been made to the have been a sale has made, bidder, report to court of the same shall be est filed, which a for confirmation shall be after petition and objections question may made. The the neces- time be sity determined at the time of for the sale can be report petition, objections and the of such filed thereto. made and
Although
purchaser
is made to the
at the time
sale
noticed,
been
title to the
which the
has
prop-
purchaser
erty
not
vested
said
until
does
become
by
such time
the sale
been confirmed
court.
as
has
9882.140,
9882.139,
See N.C.L.1931-1941
secs.
Supp.,
correspond
9882.153 and 9882.154. These
sеctions
California,
the similar sections in the state of
as the
California
are now amended. The
statutes
Supreme
Court of
Re
California in the case of In
Benvenuto’s
Estate,
679,
Cal.
“The effect is is that a order court longer required no in order to authorize the adminis- negotiate trator or executor to a sale of property purposes estate for reasons for which a sale by is authorized the section.” Brown, Cal.App.,
See also: Marlenee v. 128 P.2d pages 140, 141, where is it stated: “Under the statutе in force now and at the time of these proceedings, where a sale of real necessary debts, legacies, family pay estate is allow expenses, ance or an executor can make a sale with such any preliminary out other than notice of proceedings (See 668, 134 770.) sale.” 21 Cal.2d. P.2d Appellants required by contend that a petition provisions 9882.143, of sec. N.C.L.1931-1941 Supp., which reads follows: neglects
“If the executor or administrator or refuses any property to sell necessary estate when it is advantage, or when it for the is benefit and best interests therein, of the estate and those interested or when the same, executor is directed the will any per- to sell the may son interested petition court for an order requiring the executor or administrator to sell. The clerk shall set the given
notice must thereof be to the executor or adminis- days trator citation served at least five before the hearing.” position appellants’ that since Katle- join did sell,
man not steps the notice intention should have taken under been this section to secure an order of sale.
An examination of the record in the case will show
340 filing Bank of by the First National that at the time of Katleman, sell, Nevada, Mrs. its intention to notice of coadministrator, Nevada. was absent from the state of part in 9882.44, N.C.L.1931-1941 reads as Supp., Sec. follows: «* =i=* executors or adminis- there are two 'Wfien alone shall be valid if the other trators the acts laboring state, any from the is absent or cause is * * *” legal any disability. under Bolton, it In the case of V. Cal. is Wheeler stated: state,
“If оne of two executors be absent from the administer, (cid:127)the can and his can other accounts be presence settled and a distribution had. The be necessary. Procedure, Adams not Code of Civil sec. 1355.” appears
It therefore that the National Bank of First authority had file Nevada to the notice of intention to personal property sale, sell to institute the property, personal, belonging sale of the whether real or estate, if, opinion, they to their determined that owing neсessary, the sale of such property the fact that Mrs. Katleman was from absent the state filing any petition there no reason for the compel her to sell the her- as coadministrator alone had that power. right on any event, Katleman same Mrs. had the sale, resist to confirm the the sale. have had on a to compel
she would same; is, what primary in each case is-the issue hear- had a interests of the estate. She for the best ing issue, for some seven- had a continuance on that she days evi- and to secure further teen to secure counsel plan dence, propose which would avoid the and to necessity of the sale. present
Thereafter, Katleman was Mrs. *10 represented counsel, seeking petition filed and a an permitting order to the estate borrow the sum of $50,000 presented court, and evidence thereunder. The support after all of the evidence submitted petition for confirmation of sale and the authority borrow, deemed it was for the best interests of the stock R. estate that the be sold to Beldon developed Elranco, Katleman. It also that Inc., merely premises occupied leased hotel it . did not own them The stated: court
“That is I don’t If a what like. worth stock was money why lot I of don’t there bidders. see aren’t other open everybody. question It was There no about legality question of the sale. That is the for the because of the Elranco does shares stock gambling represent anything syndicate not but a that they property has a lease. If owned the it would be proposition. it, They different don’t the evidence own gambling establishment, shows. There is a a hotel and regularly I restaurant. think the bank made the sale lawfully legally. any ques- I don’t think there is tion where that is concerned.” foregoing opinion
From we are of the that lower court exercised its sound discretion and committed confirming Elranco, no error in the sale of the Inc. stock respondent, and note to Beldon R. Katleman. assignment
The second of error is that the notice of sell, posting thereof, intention to and the were both fatally defective.
Appellants contend that inasmuch as the letters estate were administration this issued to the First Nevada, Vegas, Nevada, National Bank of Las such personal peti- notice of intention sell and the signed tion for should have confirmation been Nevada, National Bank of the First Las Nevada, Nevada, in lieu of National Bank of Las First opinion such con-
Vegas that Branch. are of the We The First appellants merit. is without tention of Branch, Vegas Nevada, is not Bank Las National Bank person the First National from a different corporation. The cor- and the same It is one Nevada. it that car- and the fact poration administrator is the agent be or another would functions ries out its corpo- such, the corporation as immaterial, for it is the immaterial It is entity, administrator. is the rate as adminis- its functions out whether the bank carries Vegas office. through its Las office or its Reno trator agents. and not its is the coadministrator The bank itself Bank, National the First National Bаnk and The First person. Both Vegas Branch, are one and same Las *11 recognize their var- in respondents appellants this designations in the record. ious that the notice It is further contended of intention to posting the affidavit sell defective in that was should posting places place where took have described opinion posting public places. In our of the 9882.153, fully complies with the law. notices Sec. personal may Supp., provides N.C.L.1931-1941 given only public notice for ten be sold after is at least days posted public places in three in notices proceedings pending, by pub- county are or in which newspaper county, both, in or such as the lication in a may determine. record executor or administrator requisite time, publication publi- which shows a However, have been sufficient. cation alone would thereto, copies posted, three such notice were addition courthouse, city hall, county one at the one at the station, City police all in the at the of Las Clark, County of Nevada. The court State lower posted according notices to have been found these many county held times that the law. It been court- has house, city police public places. station are all hall and Sundermeyer, 102, 271 Mo. v. 197 S.W. See Walker
343 2 also, A.L.R. City Eugene, 1008. See Roach v.
Or.
The lower court found the public sale to have been a one, disputed question and on the finding of fact its However, conclusive. even if the statement had been made to the subject effect that the bylaws sale was to the corporation, this statement would not have public rendered the sale other than a sale. Such a sale public is one where the participate is invited to given opportunity full competitive to bid on a basis property placed sale, highest on which is sold to the bidder. See note on public sale, what constitutes a 2d, page According A.L.R. 575. to the record there was given no evidence at the time of the for confirmation of or the motion for a trial, new place not held in a *12 person where more than one opportunity had an to bid on the stock. assignment
The fourth of error is that the court confirming abused its discretion in By sale. sec. Supp., 9882.139 provided: N.C.L.1931-1941 it is selling property pay “In debts, legacies, family expenses, allowance or there priority shall be no between personal property. and real When a property sale of necessary any of the estate is purpose, such or when advantаge, it is benefit, for the and best interests of the estate any and those property interested therein that sold, the estate be may executor or administrator sell same, private sale, using either at auction or his discretion as to first, except which to sell provided by sections 135 and 136 of act.” this statute, questions
Under this before lower court on the of the order for confirmation were whether necessary the sale was and whether it benefit, advantage and best interests of the estate determining those ques- interested therein. this tion, the lower court was entitled to its exercise best discretion under the facts. See Estate v. Nielson’s Nielson, al., page et 107 Utah 974. P.2d at
Evidence in showed, the lower court and the court found that at the time of the the estate owed Bank $37,276.37 First National of Nevada on an overdraft; judgment that $11,260 against there awas estate Katleman; and held R. Beldon that there Elranco, $863.94; was due to Inc. pay- that there was Mary Katleman, able decedent, a former wife of the separation agreement, $95,548.63. under a certain It estimated the balance of the costs administration and attorneys’ $16,000. represents fees as This total of $160,949.94. satisfy claims, To these the estate had on Elranco, hand no cash. It held the Inc. note of $81,631.12, Elranco, the 495 shares of stock of Inc. which along appraised were $96,368.86, sold with the note $36,250. and other assets of It was obvious therefore paid, that if the creditors were to be the note Elranco, Inc. sold, stock would necessarily have to be remaining perсent as the assets than 25 less obligations of the estate. argument by appellants affecting offered ques- necessity presented
tion of the of sale was that in the urged, lower and that is here is that if time were given, $50,000 Mrs. Katleman could borrow on the secur- ity stock, by delaying the administration
345 due, $81,000 plus until the Elraneo note became another could be satisfy realized to creditors. The of note Elraneo, amounts, Inc. in was due 1953. These if real- ized, would have been still insufficient a considerable pay claims, amount to off the creditors’ and the stock subject would then have been to the lien the of for loan $50,000. proposed plan upon The with was not looked Elraneo, favor the lower court. The Inc. the is lessee, owner, large Vegas not the of a hotel in the Las engaged gambling area and in is the business. The pointed lower court out that 495 of of shares stock Elraneo, represent anything gambling Inc. did not a but syndicate lease; corporation simply that had a was gambling establishment, of lessee a hоtel and restau- presented rant. The lower court with was therefore problem of whether or not it should risk the chances losing part of creditors at least a their in the of claim future reasons of the hazards of an uncertain enter- prise, or whether to which confirm the sale would insure payment all creditors full and leave a sub- stantial amount for the heirs. only
The other hearing, matter involved on the there- fore, price was the fairness for the stock. The appraised $96,368.86. stock testimony emplоyed the certified accountant by the First investigate National Bank of Nevada to books corporation reported the book value of the stock $71,961.67. price purchaser be The actual bid considerably excess of both of these figures $102,868.88. amounted There other contrary evidence on the value the stock. Mrs. Katle- $250,000. man stated that she felt the stock was worth On on the order for confirmation on June 24, different the court on two occasions if asked there any other bidders that desired to bid stock. forthcoming. further No bid was Estate, case of In Re Scott’s 172 Cal. or
P. the court held that whether not the disproportionate price is sold value its *14 always court. of the the sound discretion which is within including case, of the all the facts It must consider necessity funds, estate, condition of the value and bearing on market, all other matters state question. time of confirma- it at the The lower court had before question estate, interests of the tion the meaning best estate at heirs and creditors all of thе problem it the made. It had before the time the sale attempt in an interests the creditors’ to risk whether higher price later date at a for the stock to secure having any It scene. bidders on the further without disapprove approve or discretion to within its depending estate. of the entire interests on the best appearing hav- of discretion and no abuse errors No ing are court shown, of the lower orders been affirmed. respondents their costs. are awarded Badt, JJ.,
Merrill concur. Rehearing Petition On May 1954. Curiam:
Per
Rehearing denied.